Derek and Bernadette Comiskey, Patrick and Rosemary Stokes (represented by the Equality Authority) -v- The Loft Ballina (Haldam Ltd) (represented by Bourke, Carrigg and Loftus Solicitors)
Delegation under the Equal Status Act, 2000
These complaints were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act, 2000, the Director has delegated these complaints to me Mary O'Callaghan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000. The hearing of the case took place in Ballina on 17th June 2004.
1. Dispute
1.1 This dispute concerns a claim by Derek and Bernadette Comiskey, Patrick and Rosemary Stokes that they were discriminated on the grounds of their membership of the Traveller Community when they were refused service in the Loft Bar, Ballina Co Mayo on 15th April, 2001. The complainants have alleged that the treatment they received was contrary to Section 3 (2) (i) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5 (1) of the Act.
2. Background
2.1 The four complainants went to the Loft Bar together on the night of 15th April 2001. Two of the complainants had been in the pub earlier that night and had ordered and were served one drink, before they left to meet the other members of the complainant party. On meeting up, the four complainants returned to the bar and as they approached the door the respondent told them that they would not be admitted as they had enough to drink.
3. Summary of the Complainant's Case
3.1 On 15th April 2001 the two male complainants went from the Comiskeys' home into the town of Ballina for a drink. They were to be joined later by their wives who remained at home until their babysitter arrived. Mr Comiskey and Mr. Stokes said that they wouldn't be known in Ballina as neither of them was from the town, although Mr. Comiskey said he had lived in Ballina for 10 years. They said that they arrived at the Loft bar at about 9 p.m. They had not been at any other pub before going to the Loft that night. Mr Comiskey said that he had been attending a car boot sale in Newport Co Mayo that day and had returned home where his sister in law and her husband Mr Stokes had arrived from Dublin. On arriving in the town, they went into the bar and ordered a drink and were served without any difficulty. They remained for only one drink, a bottle of beer each. They said they were in the pub for about 25 minutes until Mr. Comiskey got a call on his mobile indicating his wife's number and the two men then left the bar and met their wives at a pre arranged meeting spot at the Council Offices. They recalled a juke box playing music in the bar during the time they were there. They said that there was no indication of any trouble while they were there
3.2 Ms. Comiskey said that she would be well known all over Ballina as would all of her family who were long term residents of the town of Ballina and they would also be well known as they were quite tall and dark of complexion. She said that she was employed as a community worker in the area and had been doing community development work including voluntary work with the Traveller Community for some time. She said that she was known to the extent that at times her home resembled that of a T.D., with the numbers that passed through. Among the projects she had been involved in was one which looked into the difficulties Travellers had in getting bookings in licensed premises in the town. Although she didn't have specific data regarding the Loft she was aware from reports from other Travellers that they did not get served there. When the men and the women of the group met up the men suggested that they return to the Loft but Ms. Comiskey said that she was totally shocked at the suggestion that they go to the Loft as she understood that members of the Traveller Community would not be served in the premises.
3.3 However, they continued down the street towards the pub and when they got to the door the bouncer was about to let them in when Mr Patrick Hallahan came up to them and said they had had enough to drink and that they would not be admitted. Ms. Comiskey said that she asked the man who was refusing her for his name and the time as her training through her work had informed her that this was the appropriate action to take in cases where refusals of service occurred. After some discussion the man told her the name was Patrick. She said that she notified the respondent pub owners of her complaint concerning the incident and, at a later date, received a response from Mr. Patrick Hallahan indicating that he had formed the opinion that she and those with her were intoxicated and that their presence on the premises would put their safety and the safety of others on the premises at risk and for this reason he refused them entry. The response also stated that he recalled the presence of the men of the group on the premises earlier on the night and that they has been served without any difficulty.
3.4 Ms. Comiskey said that she was a non drinker and that she did not go out that often. Ms. Stokes said she rarely goes out. The reason she was with her sister that night was that she had just come from Dublin where she and her husband had spent the week with her child who was receiving treatment in hospital. The men had gone to the pub first because it was necessary to have a babysitter before she and her sister joined them. Their arrangement was that the women would phone the men when they were leaving home in order to meet up with them at a pre-arranged spot. Ms. Comiskey said that she would never enter a pub unaccompanied and it was normal on such occasions to meet with her husband first. Ms. Stokes said that she did not drink much as she suffered from arthritis.
3.5 The men of the group said that they had never met Mr. Patrick Hallahan the respondent prior to that night. They believed that a younger barman had served them when they went to the bar early that night. They also recalled the bouncer being at the door and that this was the same bouncer who was there on their return. They said that there had been no difficulties in getting served earlier in the night and that nothing had happened to cause them to believe that there would any difficulty in getting service if they returned to the pub later with their wives. The only reason they had left was that Mr. Comiskey's mobile phone had rang and they knew that the ladies would be waiting for them.
3.6 All four complainants said they left the entrance of the premises after the refusal, and once they had got the information they had asked for. They walked away down the street. The complainants said that they believed the reason for their refusal was that when the men returned to the pub with their wives, the wives were recognised as members of a local Traveller family and that the men were then also recognised as Travellers which they hadn't been on their earlier visit when the women of the group were not present.
4. Summary of the Respondent's Case
4.1 The respondents said that the Loft had been open under its current management since 1985. It is operated by the Hallahan brothers. It is a large premises and there are bars on three different levels including the Cellar bar where the men of the complainant group were. They said that overall the bar has a capacity of 500-600 and the customer base comprised a wide range of people and age groups. They said that the main entrance to all of the three bars was through one main access. They said that the bar had some Traveller customers who used to come in with a non traveller man, who worked with Travellers. Apart from that Travellers from a local football team whose membership was mainly made up of Travellers used to come in also. The respondents said that they would know of the Traveller families in the town and they named two families (one of whom was Ms. Comiskey and Ms. Stokes family). He said he knew Ms. Comiskey through the media.
4.2 One of the Respondents, Mr. Patrick Hallahan said he recalled the incident on the 15th April 2001. When the men of the complainant group came into the pub on their first visit that night, he was busy getting the tills ready in the main bar. His brother was in the other bar and he went to have a look around He went to the door of the Cellar and he noticed two gents sitting at the bar. The two were talking aloud. He went to the till said hello and then went to his brother who was serving. He said that he sought Robert Hallahan's opinion about the men and that Robert Hallahan replied that he was going to serve them one and no more. He said that he went up stairs to speak to Padraig Dooley who was working as doorman at the time and to tell him that if the men asked for more drink that they would be refused. While he was doing this he said the men came up the stairs and left the bar. He believed that this was about 9.25 p.m.
4.3 Mr. Robert Hallahan a brother of Patrick Hallahan said he was working in the Cellar bar on the 15th April 2001. He said the bar opened at 9.00 p.m. and that when it opened it was the practice to play ten tracks on the juke box before customers came in. The sound of the music would be heard throughout the bar playing pop and rock. He said that two gents were sitting at the end of the counter and the ordered two long necks. The bar was not busy at the time. While he was clearing around he said he wondered if he should serve them but he gave them their drink. As he was doing so he said Patrick Hallahan came down and asked him if he knew the two men and he replied that he didn't. He said he did think they were getting "tipsy" and he said that Patrick went to get Padraig Dooley the doorman. He said that the two men then left on their own initiative. Mr. Hallahan said that he did not believe that the men had received a phone call as the mobile phone reception was poor in the Cellar and he did not think that they could have picked up a call. When asked how he had formed the opinion that the men should not be served any more drink he said that they had slurred speech. He said that he was in no doubt that they had drink taken. Mr. Hallahan said that while he would have an awareness of Travellers he said he would not know a Traveller unless he was told that someone was a member of the Traveller Community.
4.4 Patrick Hallahan said that about 5-10 minutes later he was standing at the main door with Padraig Dooley the doorman checking ID for under age drinkers. One was checking for the main bar and the other for the Cellar bar. Mr. Hallahan said that he heard people coming down the street. He saw the two ladies crossing the road with the men and as they approached the entrance he said to them "not tonight you've had enough". He said that Ms. Comiskey asked him for his name and the time. The group then left and walked up the street. He said that he formed the opinion that Ms. Comiskey was intoxicated and that all of the party were intoxicated at that time.
4.5 Mr. Padraig Dooley was working as doorman at the pub on the night of the incident. He said that at the weekends there would usually be two people working on the door, himself and either Robert or Patrick Hallahan. He said he did not work inside the bar although he occasionally did a walk through the premises to check things. He said there was a walkie talkie system in place for communication. Mr. Dooley said that he knew Bernadette Comiskey to see and would have recognised her to be a member of the Traveller community but he did not know the others in the group and was not aware that they were Travellers. He said that it was a calm night and that he heard noise coming from the direction of Ruse's pub which was across the road and on the left hand side of the Loft. He said that two men and two women were approaching talking loudly. He said that Patrick Hallahan was standing to his left hand side. He said it was obvious that the men had alcohol consumed from the loud talk and the way they were walking. Mr. Dooley said that Patrick Hallahan did not allow them in. He said that it was the first time that he had seen the men that night. Mr. Dooley said that from his experience two to three minutes is sufficient to decide if a person should be admitted or not.
4.6 When asked if any of the party were verbally abusing Mr. Hallahan, Mr. Dooley replied that "it was a bit loud" and that Ms. Comiskey wanted action straight away. When asked about his knowledge of these proceedings he said he had found out just a week or two before the hearing. Mr. Patrick Hallahan intervened to say that Mr. Dooley had been informed of the hearing of the matter at that time.
5. Conclusions of the Equality Officer
5.1 First, I must assess whether the complainants have succeeded in establishing a prima facie case. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Traveller community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants were less favourable than the treatment someone who was not a member of the Traveller community would have received in similar circumstances.
5.2 It is uncontested by the parties and on the basis of the evidence presented that the complainants are members of the Traveller Community. Therefore the first of the criteria outlined above is satisfied. The evidence of all parties to the complaint confirms that the complainants were refused entry to the respondent premises on the night of the 15th April 2001. This satisfies the second of the three criteria.
5.3 In order for a prima facie case of discrimination to be established it is necessary for the third test to be met. There must be evidence that the treatment received by the complainants from the respondents on the evening of this incident was less favourable than that which would be afforded to any person in similar circumstances who was not a member of the Traveller Community. In this case two of the complainants went to the Loft bar firstly without their wives and their experience was that they were served one drink without any difficulty before they chose to leave to meet their wives in the town. The respondent has alleged that they were concerned about the men as they were talking loudly while they were in the bar and that they would not have been served a second drink if one was ordered by the men. There has been no evidence that the men caused any trouble in the bar on that visit other than that they were speaking loudly. The evidence is that they were the only customers in the Cellar bar at that time as it had just opened and there was music playing on the juke box. The written response to Ms Comiskey's notification of complaint refers to the fact that "two friends/associates of Ms Comiskey had already been on the premises without any difficulty". This is a reference to the men's visit. The response had changed when the respondent replied to the other three complainants who notified their complaints to the respondent some weeks later, when he said in reference to the men "Our policy normally is that if someone enters the premises intoxicated they are served one drink and then if they ask for more drink they are refused and asked to leave." If there was an issue as to whether the men were intoxicated, as was outlined in the evidence of the respondent, this surely would have been considered a "difficulty" and would have been referred to in the earlier response to Ms. Comiskey's notification. I consider that if intoxication was an issue when the men went to the pub first, that the men would not have been served, particularly since the pub was sufficiently quiet to deal with a situation of intoxicated customers swiftly and efficiently. On balance I found the evidence of the respondent to be less compelling than the evidence of the complainants in relation to the amount of drink that had been consumed and I conclude that on the balance of probabilities none of the complainants were intoxicated.
5.4 The refusal occurred when the men returned to the pub within a short time of leaving. On this second visit the men were accompanied by their wives who they said they had met in the town following a mobile phone call received while they were in the pub earlier. Again according to the respondents and their witness it was loud talk that alerted them to the complainants when they were approaching. On their reaching the pub entrance Mr Patrick Hallahan said he had formed the opinion the entire group was intoxicated. Mr. Hallahan's written response to Ms. Comiskey's notification of complaint states "I formed the opinion that Ms. Comiskey and her friends were intoxicated". Mr. Padraig Dooley who was at the door of the premises gave evidence that in his view the men had drink taken, although he did not offer any view as to the women of the complainant party.
5.5 The evidence of the complainants has been that Ms. Comiskey and Ms. Stokes had no drink taken on their arrival and that in fact Ms. Comiskey does not drink alcohol at all while Ms. Stokes drinks only rarely due to a medical condition. I found their evidence on this point to be credible. It is acknowledged by the men of the complainant party and was witnessed by the respondents that the men had been served one longneck bottle of beer each by the respondents on their first visit to the Loft that night. There is no substantive evidence that they had already been drinking although both the respondents and their witness expressed the view that this was not the first drink the men had that night. Neither, however, has given any explanation for forming this conclusion. In fact Mr. Dooley's evidence is that he did not encounter the men until their return visit which was after they had been served one bottle of beer in the premises and which was only 5-10 minutes after they left following that drink. I have concluded that on the balance of probabilities this does not confirm the hypothesis that they had been drinking to the point that they were intoxicated when they went to the Loft either at 9.00pm that night or when they returned at 9.35p.m., ten minutes after leaving the premises to meet their wives. As already stated I consider that it is most likely that none of the complainants were intoxicated to the extent that they should not be served on either occasion when they went to the Loft bar on the night of the incident complained of. I am satisfied that someone who was not a member of the Traveller Community, who had arrived at the Loft bar under similar circumstances, would not have been treated as the complainants were and that the complainants were treated less favourably. The complainants have established a prima facie case of discrimination. In circumstances where a prima facie case of discrimination has been proven by the complainants the burden of proof then shifts to the respondent who must rebut the case of discrimination.
6. Rebuttal
6.1 In this case the respondent has raised two defences to the case of discrimination. These defences arise under Section 15 of the Equal Status Act 2000-2004 and I will deal with each in turn. Section 15.1 says that:
"...nothing in this Act prohibiting discrimination shall be construed as requiring a person to provided services...to another person in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods...or the provision of the services, as the case may be to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought..."
This section of the Act in order to be applicable as a defence to a service provider requires him to have not only to have a knowledge and experience of the people he is refusing but that the knowledge causes him to believe that they pose a substantial risk of criminal or disorderly behaviour. In this case the evidence of the respondents is that they did not know any of the complainants and had not met them before apart from knowing of Ms. Comiskey's work through her profile in the media. There was nothing in the behaviour of the complainants on the night in question to suggest that any risk, substantial or otherwise had arisen from their presence on or off the premises of the Loft. In fact the men of the party on their earlier visit had voluntarily left after one drink without any suggestion from the respondents that they should do so. The most that could be said of their behaviour was that they were talking loudly in a bar where music was being played throughout the bar from a jukebox at the time. Section 15.1 poses a high threshold of risk that must be shown to be a valid defence in this case. I do not think that the defence would apply in the circumstances of this case.
6.2 The second defence arising from Section 15 of the Equal Status Acts is set out in Section 15.2 which states:
"Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination". This defence is available to publicans in order to ensure that any actions they take to ensure their compliance with the Licensing Acts cannot be labelled a discriminatory. While the threshold to be met in raising this defence is lower than that required under Section 15.1 in that all that is required is for such actions to be taken in good faith, it is not a blanket exemption to the provisions of the Acts for licensees. I do not consider that the respondent has met the requirements to affect this defence. Their actions in alleging that the complainants particularly Ms. Comiskey, a non drinker and Ms. Stokes who only drinks occasionally were intoxicated, in the circumstances of the refusal and which were set out in the response to Ms. Comiskey's notification do not support the contention that the actions were taken in good faith. Furthermore, the same notification indicated that there were no difficulties in serving the men of the group on their first visit to the pub less than an hour before the refusal. Yet once the men themselves notified their complaint, as did Ms. Stokes some weeks later, the suggestion that they were intoxicated during that visit to the premises emerged. For these reasons I conclude the respondent's actions were not good faith actions to ensure compliance with the licensing acts and most likely arose from the recognition of the group as Travellers when the women returned with the men to the pub.
7. Decision
On the basis of the evidence I find that the complainants Derek and Bernadette Comiskey and Patrick and Rosemary Stokes were discriminated against by Haldam Limited the Loft Bar contrary to Section 3 (2) (i) and in terms of Section 5 (1) of the Equal Status Acts 2002 to 2004. Therefore, each of the four complaints before me is upheld. I consider that the reason for the discrimination was the recognition of each of the complainants as Travellers when all four went together to the pub that night. I have concluded that the presence of the two women who were from a known Traveller family and particularly the presence of Ms Comiskey, who had a high profile in the area as a Traveller advocate, clearly identified the four as Travellers in the mind of the respondent Mr. Patrick Hallahan. I have concluded that the allegation that the group may have been intoxicated does not hold up in the context of the statement by Ms Comiskey that she does not drink at all and by Ms Stokes that she drinks only occasionally and that they had not been drinking that night. I found these two ladies to be credible witnesses. I find that the responses to the complaints were not consistent in that it appears that the men of the group did not present any difficulty on their first visit but on their return just a few minutes after leaving the premises, of their own volition, the respondent considered them to be not in a fit state to be served. However, the interval between the two visits was so short that it would have been very unlikely for the men to have been drinking in the intervening period. The suggestion by the respondent of intoxication on the part of the complainants was not, therefore, convincing in the case of the men either. This has brought me to the conclusion that the refusal resulted from the recognition of the group as Travellers when the men returned in the company of members of a known Traveller family. This constitutes discrimination under the Act.
8. Redress
Although the maximum order for redress that can be made to each complainant is €6348.69, I consider the following redress to be appropriate in these four complaints. In relation to Ms Comiskey's complaint I order that the respondent pay to Ms Bernadette Comiskey the sum of €600.00 as redress for the effects of the discriminatory act. I order that the respondent pay to Ms. Rosemary Stokes, the sum of €600.00 as redress for the discrimination suffered by her. I order that the respondent pay redress of €400.00 to Mr. Derek Comiskey for the effects of discrimination suffered by him. I order that the respondent also pay to Mr. Patrick Stokes the sum of €400.00 as redress for the effects of the discrimination and the loss of amenity resulting from the discriminatory acts suffered.
Mary O'Callaghan
Equality Officer
13 September 2004